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If you don’t want the creek, you don’t have to take it, but the deed needs to explicitly exclude it. There is no problem with that, unless the owner on the other side also doesn’t own the creek. Then the potential problems are obvious.
I’m not sure what nuisances you would be avoiding by not taking the creek. I would think that many of the nuisances would still be there, but you wouldn’t be able to do anything about them.
The deed does include the phrase “to the west bank of Nancy Creek, thence in a southerly direction along the west bank of Nancy Creek to a bridge over Nancy Creek, thence…………”
Would that qualify as language explicitly excluding the bed of the creek?
I’m not an expert in Georgia law but if I wanted to get a feel for it I would read those two cases and any which cite them.
Except the GA cases don’t seem to have ever directly addressed the fact pattern. So, I would rely on the old plat, adjoining deed, and presumption per the Statute. They might look to other State law especially adjoining States. But whatever you do, don’t quote TN river boundary law to the GA Judge:)
Yes after I posted I read the case…Starts on the bank, crosses to the other side then up the other so the Court said that is sufficient to rule the deed conveyed the entire river bed.
So it doesn’t say “up the river” as in your post above? If it says “up the river” it clearly touches the monument (even if it ends at a stake on the bank), so no problem. But to the bank, then along the bank doesn’t touch the monument (the water). Under traditional case law it has to touch the monument. Trend is certainly to give title to center with calls to and along the bank, but may not be what GA courts would say. Before our high court decision in Knapp v Hughes, NY a call to and along bank was sufficient to limit the conveyance, but any call touching such as HW, LW, the river, etc. carried to center.
3. Where a deed establishes a non-navigable stream as a boundary line, the owners on either side are entitled to the land running to the thread or center of the main current. Code § 85-1302. See also Pindar, Ga. Real Estate Law 451, § 13-19; 12 AmJur2d 564, Boundaries, § 22. Where the line is described as running to the stream, language which describes it as thereafter running “with,” “along,” “by,” “on,” “up,” or “down” the stream will be construed to carry the title to the center unless contrary intention appears from the instrument. 6 Thompson, Real Property 718, § 3075 (1962 Ed.). The relevant language in the deed at issue in this case, however, does not provide that the line runs merely to the stream. Rather, it provides as follows: “Commencing on the west bank of the Chattahoochee River at a corner … at or near a ford of said river, thence in an eastern direction across the river, thence in a northern direction up said river to a white oak near the bank of said river …” (Emphasis supplied.) This description of the line as running across the river is consistent with the appellees’ contention that the deed was intended to convey the entire riverbed. See 6 Thompson, Real Property 744, § 3082 (1962 Ed.); III American Law of Property 245-246, § 12.27 (1952). Although the appellants contend that there is other language in the deed which evidences a contrary intention to make the center line of the river the boundary, we do not find any language which would demand such a construction.
Made a survey for a client several years ago that the intent of the sale was to keep the creek up past a certain crossing where his cows were able to get water and then change sides of the creek so the buyer would have access to water if he wanted to dig out a slope in the deep bank creek for his cattle to get to water. I made the boundaries 10ft away from the banks of the creek.
the way I read this is one side wants to limit the conveyance to center because presumption is center when the monument is mentioned “up said river”. the other side successfully argues no, it goes “across” and ends on the other bank, so intent is whole bed of river. Using that logic, it would seem a call to and along bank would limit the conveyance to the bank in GA.
So which bank, top or bottom? I say top because it’s the first one that is encountered. If call is to a monument you generally can’t go through one and on to the next, unless contrary shown. To the river would end at the first river encountered and not go through it and on to the next, unless the second was specifically named. So to go to the bottom of bank instead of top, the call would have to be to the bottom of bank. And it would end at first bottom of bank encountered, not go across to other side.
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